I am a professor at Santa Clara University School of Law, where I teach and write about Internet Law, Intellectual Property and Advertising Law. Before I became a full-time professor in 2002, I practiced technology law in the Silicon Valley from 1994-2002. I've been blogging at the Technology & Marketing Law Blog since 2005 (http://blog.ericgoldman.org).

What Should We Do About Revenge Porn Sites Like Texxxan?

Periodically, a new controversy springs up about a website that encourages users to post anti-social or distasteful content. A few years ago it was sites like JuicyCampus or People’s Dirt that requested users to gossip about each other; followed by IsAnyoneUp? that linked user-submitted pornographic photos to the subject’s Facebook page. The latest website to stir up a media frenzy is Texxxan.com, which encourages users to post ”revenge porn,” i.e., pornographic depictions of former lovers, ostensibly to get revenge on them.

The Texxxan Lawsuit Will Fail

Texas lawyers recently filed a class action lawsuit against Texxxan.com, its web host GoDaddy ($DADY), its uploaders and its subscribers. No matter how much the lawyers hype their lawsuit in the media, it’s mostly dead on arrival. All of the defendants–other than the users actually submitting the revenge porn–are protected by 47 USC 230, the law that says websites aren’t liable for third party content. Section 230 also explicitly protects website users, so the claims against the website subscribers are specious. In fact, Texas recently enacted a broad anti-SLAPP law designed to discourage anti-free speech lawsuits. If the courts determine that the revenge porn relates to a “matter of public concern” (not likely, but it is possible), the plaintiffs’ lawyers will be writing checks to the improperly targeted defendants.

It’s more complicated assessing the liability of the users who post revenge porn. We need to know more about how the defendants got the revenge porn and under what terms or understandings. (Obviously, that could lead to some salacious pillow-talk appearing in court records). Because the court will have to evaluate each submitted item’s history on a one-by-one basis, the effort to organize a class action should fail for procedural problems (irrespective of its substantive merit or lack thereof).

Because the existing class action lawsuit is so weak, the Texxxan plaintiffs’ best legal chance is to bring individual lawsuits against the defendants who did them wrong. Normally, when dealing with distasteful online content, plaintiffs have difficulty identifying the otherwise-anonymous defendants–a problem that encourages the plaintiffs to pursue easier-to-find defendants, like web hosts. In contrast, in this particular case, revenge porn plaintiffs often can find the defendants, because (we hope…) there’s a limited number of people who have nude depictions of the plaintiff.

Still, our current legal system isn’t well-designed to redress user-submitted online pornography. And as a practical matter, even if the law were more effective, there will always be uncomfortably anti-social behavior online. So, what should we do differently?

Perhaps most importantly, distasteful content websites routinely fail on their own accord, often quite quickly. JuicyCampus? Gone. People’s Dirt? Gone. IsAnyoneUp? Gone (but coming back?). Even Texxxan already put its content behind a paywall, rendering the content largely invisible. My guess it that Texxxan.com is already on an irreversible path towards a complete winddown. These shutdowns aren’t an accident. Inevitably, the website operators face enormous pressure from the media coverage, the public’s opprobrium, the threats of vendors (especially payment service providers or ad networks) to cut off or reduce service, and yes, even the legal risks. As a result, distasteful content websites have comparatively short shelf lives. As attributed to Lao Tzu (and repeated in the movie Blade Runner), ”the flame that burns twice as bright, burns half as long.” If the marketplace is going to drum these websites out of business organically, without any new laws, perhaps the existing regulatory policy is working OK.

Furthermore, many distasteful content websites exist principally because of Google ($GOOG) indexing. As Google evolves its algorithm, I hope it will eventually reduce the visibility of these low-value websites–which in turn will reduce the websites’ financial potential. The ordinary evolution of Google’s algorithm is far more likely to suppress distasteful content website entrepreneurship than any new law would.

The Future of Revenge Porn

Let’s face it: between sexting and sex tapes, far more private pornography is being generated than at any point in human history. Whereas having nude/sexual depictions of a person used to be a rarity, for future generations (and perhaps current ones) such depictions are going to be normal–perhaps even ubiquitous.

When we reach that point, there will be substantially less “scandal” or taint associated with the unauthorized posting of nude/sexual depictions. After all, many other folks will have made similar depictions. The public dissemination of such depictions might still violate the privacy expectations of the depicted individuals, but it will not be seen as unusual.

This points the way to the long-term “solution” to the revenge porn “problem”: we as a society will necessarily have to adjust our social norms about the dissemination of nude or sexual depictions to reflect their ubiquity. In fact, we’re likely to develop a type of “blindness” to such content, just like today it’s bad etiquette to check out a colleague’s house value on Zillow ($Z)–or, at least, we don’t discuss the prices publicly, even if we’ve checked them out. If we can wait until our social mores about online nude/sexual depictions adjust, we won’t need any new laws to facilitate that adjustment.

Still, for individuals who would prefer not to be a revenge porn victim or otherwise have intimate depictions of themselves publicly disclosed, the advice will be simple: don’t take nude photos or videos. Even if you never share them with anyone, these depictions seem to have a surprising capacity to leak out (for example, there are numerous stories of IT technicians or criminal hackers obtaining photos and videos). If you decide to take nude photos or videos, never share them with anyone else. Effectively, when you do, you are gambling that person will not betray your trust for the rest of their lives. The reality is that most people aren’t that trustworthy; or even if they are, it’s hard to know that in advance.

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Eric, couldnt the plaintiffs get around Section 230 by stating a right of publicity claim — at least in states where that claim has been found not to be preempted? Also, wouldnt there be culpability by the website if the photos are of underage women?

Yes, a publicity rights claim is probably not preempted by 47 USC 230 in Texas (and everywhere else outside the 9th Circuit). However, it’s a stretch to argue that the publication violates publicity rights, any more than a newspaper publishing a photo of a person violates the publicity rights of that person. If the photos or videos depict underage women, that would be child pornography and it could be trouble for everyone–although the website operators probably need some scienter before being liable for publishing user-submitted child pornography. Eric.

“I find this to be blaming the victim, once victimized by a site like Texxxan etc. you’re telling a person that it’s their own fault”

Is it not? When did we get away from personal responsibility for anything we do in country and expect society to shoulder the blame. I read a similar article about a woman suing match.com after she was assaulted by someone she met on their site. So if she met him in a bar, would she sue the bar? Or had she met him on a bus bench, sue the bus company? Where does it stop?

Long ago we waded into dangerous waters expecting our government to protect our every move. Be careful what you ask for because we’re going to end up with way more than we bargained for.

If you don’t want naked pictures of yourself on the internet, don’t take them. Please stop asking Dad to get you out of situations YOU got yourself into.

The future of FREE online PORN is extremely DIM as is the future of 47 §230! The future of printed porn like Playboy and well marketed pay porn sites it bright! The right you refer to as created of “to be forgotten” better described as “right to repent” is older in common law rulings than the United States and dates to the 1760′s.

The future of Google Inc, Microsoft Corporation, and their use of 17 §107 are dim as well as well as the wild hope that the FCC will maintain malfeasance per 47 §151 and not regulate the content of all internet wire connections and all with a radio component like mobile phones.

The United States HOAX called copy[rite] will soon be converted instantly to a real copyright like the rest of the civilized Earth observes.

The Silicon Valley will accept copyright but content producers will have to accept a common law copy right as well.

Neeley v NameMedia Inc, et al,(5:09-cv-5151) allegedly cost Google Inc several hundred thousands and resulted in United States copy[rite] regime no longer being Berne Compact compliant. This ruling utterly invalidated 17 USC §106A and was the ONLY time this portion of the United States copy[rite] ritual or HOAX has been considered for photographic visual art.

Neeley Jr v FCC, et al, (5:12-cv-5208) Has two near-frivolous motions to dismiss pending as well as one near-frivolous motion for Rule 11 sanctions. Neeley Jr agreed with the sanction requested if either corporation was dismissed.

Disclosure: I am, Curtis J Neeley Jr, the plaintiff in this case. The docket is mirrored by me for free and is current as of today.

You are so out of touch with the reality of this subject. Florida, as we read this, is about to pass legislation that will make this a 3rd degree felony with up to five years imprisonment for each violation. Plus, the majority of these victims are female, and underage for that matter. I gaurentee you the owners of these sites do not have on record the required documents under Title 18, Section 2257.

Eric Goldman, you go first…since naked pics of everyone online is soon to be the new “norm”, lead the way man. Put your nude glory out there for the world to see with a link to your Facebook page.

Oh you are declining? Yup I thought so.

Only someone who watches porn (and probably on a regular basis) could write an article about revenge porn and rationalize that having a pic of yourself naked online will become usual and customary in the near future. But usually porn watchers are oblivious to the most insidious subtle effects of porn use over the long term – which is that porn use has the potential to create, in the user, a world view in which everything is seen through a sexual filter. One characteristic of a sexualized world view is that the viewer starts to think and believe that fringe or unusual sexual activities or behaviors are more common than they really are.

The website is gone. Who cares why? This Forbes BLOG post is still revealing how many hope BROADCASTING in the wire medium is never regulated. US courts are WHY pornography rules the web and the aging oligarchy who grew up unable to surf for porn anonymously will protect this absurdity until it is no longer politically accepted. TheEndofPornbyWire.org will be my last semi-respectful attempt to use the senile oligarchy of US Courts.